Lionel Bently, professor of Intellectual Property at the University of Cambridge, further argues that the legislation is misguided, will introduce needless red tape, and could cause far wider damage to British business and education.
In a recent online debate with The Guardian, Professor Bently said that: "On the face of it, the bill looks like good news for design, but there are lots of people that have been critically overlooked: from university lecturers teaching design history, to book publishers, to museums - everyone will now have to seek permission."
ATG first reported on the proposal to repeal section 52 of the Copyright, Designs & Patents Act 1988 earlier this year. It was unveiled as part of the Enterprise & Regulatory Reform Bill being championed by Business Secretary Vince Cable, a piece of legislation that aims to iron out anomalies and injustices in existing statutes.
Section 52 currently limits copyright in commercially mass-produced designs to 25 years, a contrast to the copyright for artists and photographers, which extends to 70 years after their death. Repealing Section 52 would remove the 25-year limit and bring it in line with the 70-year limit, a change campaigned for by the Design industry and one which Whitehall says is necessary under European Union harmonisation regulations and to meet the demands of a recent court case in Italy.
What has caused particular concern is that the repeal would be retrospective. In short, rights that expired some time ago under the 25-year rule would be reassigned to the original holder or their heirs until the 70-year limit is reached. This would leave a significant number of businesses who have legitimately invested in the manufacture or sale of copyright-expired designs at the mercy of the re-enfranchised copyright holders.
Skewed Rights
Professor Bently published a detailed paper in July, pointing out why EU rules and the Italian court case do not apply to Section 52. He argues that far from harmonising rights, the proposed change would skew them because they ignore protections carried by other laws, which police what he calls the 'design-copyright interface' to prevent the overlapping of rules that might put commerce and the consumer at a disadvantage.
Professor Bently has been especially critical of what he sees as a rushed, ill-thought-out approach by the Government and the Intellectual Property Office in pushing the repeal through.
Accusing them of "tinkering and firefighting", he dubs the Enterprise & Regulatory Reform Bill a "hopeless response" and, echoes ATG's own criticism of the lack of due process in assessing the impact of the changes on business.
"If the V&A has an exhibition of fabric designs from the Second World War and post-War austerity era, permissions will need to be sought to include images of these designs in the exhibition catalogue and on postcards," he told The Guardian.
"If the BBC commissions a short film about the work of the Design Council, including images of designs made in the 1950s and 1960s, permissions will be required to broadcast the images."
And perhaps of most concern for those publishing in the world of art and design: "The law will also apply retrospectively, meaning any book published that illustrates a work of 20th-century design will likely have to be edited and reprinted."
Professor Bently concludes that the Government and IPO have been driven heavily by interested parties in the Design industry in what he refers to as "lobbynomics" rather than forming policy on the basis of objective evidence.
Detailed ongoing research by ATG has provided much evidence to support this argument.
